State v. Wasiielesky

• Decision Date: 16 June 1908
• Citation: 70 A. 62,81 Conn. 22
• Court: Connecticut Supreme Court
• Parties: STATE v. WASIIELESKY.

70 A. 62

81 Conn. 22

STATE

v. WASIIELESKY.

Supreme Court of Errors of Connecticut.

June 16, 1908.

Appeal from Superior Court, Now Haven County; Silas A. Robinson, Judge.

John Washelesky, alias John Wiszniski, was convicted of murder in the first degree, and he appeals. Affirmed.

Howard C. Webb and Levi N. Blydenburgh, for appellant.

William H. Williams, State's Atty., Arnon A. Ailing, and Edward A. Harriman, for the State.

THAYER, J. The defendant was found guilty of murder in the first degree, and moved that the verdict be set aside as against the evidence. The motion was overruled. His exceptions to this ruling are founded upon two grounds: First, that the evidence failed to establish the death of Peter Lucaszewicz, for the murder of whom he was indicted, and, second, that the evidence failed to so connect the defendant with such death, if it had been proved, as to exclude every reasonable hypothesis of his innocence. The evidence by which the state claimed to prove that the body was that of Lucaszewicz was wholly circumstantial, came from a large number of witnesses, and we shall not undertake to review it. It is sufficient to say that there was positive evidence tending to prove a large number of independent facts from which the inference could be logically drawn that the dead body, which when found was so decomposed as to be unrecognizable, was that of Lucaszewicz. This evidence was practically uncontradicted. We think that, from the facts thus claimed to be proved, the jury might reasonably be satisfied beyond reasonable doubt that the body was his. The weight to be given to the evidence, and whether it established the facts claimed by the state, were matters to be determined by the jury.

Having offered evidence to prove the death, and also proof that it was caused by human agency, the state offered evidence to prove that the defendant was the agent who caused it. One witness was produced who attempted to connect the defendant with Lucaszewicz on the night of the latter's disappearance, and to show that, after having been assaulted by the defendant, Lucaszewicz, when last seen, was being pursued by the defendant, who was armed with a fence picket. This witness was not positive in her identification. Other evidence connecting the defendant with the crime tended to show previous quarrels between the parties, threats, motive, declarations subsequent to the disappearance of Lucaszewicz showing guilty knowledge, flight, and other guilty conduct by the defendant. This evidence, also, was substantially uncontradicted. It was evidence to be weighed by the jury. If they were satisfied that the witness who testified to the assault upon Lucaszewicz was truthful, and that she was correct in her belief that the person who committed the assault was the defendant, and were also satisfied as to the existence of the motive for the crime, and of the fact of the previous threats and subsequent declarations, then there was very strong evidence upon which to find the guilt of the accused. It was the province of the jury to determine the value of this evidence tending to connect him with the crime, and to say whether it was equivalent to the testimony of two witnesses and therefore sufficient to establish his guilt of murder in the first degree. They were fully instructed as to the law bearing upon these matters, and have found him guilty of murder in the first degree. The trial judge who heard and saw the witnesses has refused to set aside the verdict. As we have repeatedly said, great weight is to be given to the action of the trial court in any ease in granting or refusing a motion to set aside a verdict. This is especially true in a capital case, where it must be presumed that he gave the matter most serious consideration before passing upon the motion. We have carefully read the testimony, and think that the jury were warranted in finding the verdict which they did.

The defendant complains that, in view of his claim upon the trial, that the state had failed to prove the death of Lucaszewicz, or that it was the latter's body which had been found, and the claim that his mere disappearance was not of itself sufficient proof of the corpus delicti, the charge of the court upon this branch of the case was not only inadequate for the instruction of the jury, but was injurious to the accused, in that it assumed throughout that the corpus delicti was established. But the court very clearly stated to the jury that the state was bound to prove that Lucaszewicz was dead, and that his death was caused by human agency. And after saying to the jury that the state claimed to have established these facts, it continued: "The burden is upon the state to prove beyond a reasonable doubt that the dead body found, as claimed in the testimony for the state, was the body of Peter Lucaszewicz. This is one of the facts necessary to be established to warrant the conviction of the accused. This is necessary to be proven in order to establish the death of Peter, to establish the death of the man claimed to have been killed; a failure on the part of the state to establish such death beyond a reasonable doubt should be followed of course by an acquittal of the accused." The court then, after having stated and commented upon the other claims of the state, called the jury's attention to the claims of the defendant, and among them to his claim that it had not been proven that the dead body was that of Lucaszewicz. The jury could not have understood from the charge given them that the court assumed that the corpus delicti had been established; on the contrary, they could not have failed to understand that the parties were at issue upon the facts essential to its establishment, and that they, the jury, were to determine from the evidence whether those facts had been proved. The isolated sentences or parts of sentences to which reference is made in the defendant's brief as showing the court's assumption that the death of Lucaszewicz had been established, are found for the most part in those portions of the charge wherein the court is stating the state's, or defendant's, claims, and not the court's own opinion as to what had been established by the evidence. The remarks criticised are to be considered in connection with the context and with the charge as a whole. State v. Rathbun, 74 Conn. 524, 531, 51 Atl. 540. So considered, the charge presents no grounds for the criticisms mentioned.

Complaint is made of the court's charge as to the amount of evidence required to justify a verdict of murder in the first degree. The court having told the jury in the language of section 1508 of the General Statutes of 1002 that "no person shall be convicted of any crime punishable by death without the testimony of at least two witnesses or that which is equivalent thereto," instructed them that murder in the first degree is so punishable and that the statute applies to convictions for that crime. He then said: "You will observe that the requirements of this statute are not confined to the testimony of two witnesses. It goes further, and adds, 'or that which is equivalent thereto;' that is, equivalent to the testimony of two witnesses. It is enough if the testimony is, in the minds of the jury, equivalent to that. Neither is it required that there should be two witnesses to every important fact. If there are two or more witnesses, each testifying to different parts of the same transaction, or to different circumstances surrounding the case, tending directly to show the guilt of the accused, it may be regarded as a sufficient compliance with the statute, although there may not be two witnesses to any one fact or circumstance." This was a correct statement of the law. State v. Smith, 49 Conn. 376, 385; State v. Bailey, 79 Conn. 589, 596, 65 Atl. 951; State v. Marx, 78 Conn. 18, 22, 23, 60 Atl 690; State v. Kelly, 77 Conn. 206, 274, 68 Atl. 705. It was adapted to the case, and there was nothing in the facts or claims of the parties calling for any further or different statement. The statute does not require, as claimed by the defendant, that there shall be "testimony of two witnesses to the homicidal act." State v. Smith, 49 Conn. 376.

The defendant complains of certain remarks made by the state's attorney in closing his argument to the jury, and assigns as one of the reasons of appeal and grounds for a new trial that the court erred in permitting these remarks to be made. The words complained of are, "The grand jurors of the county charge to you in behalf of this commonwealth that John Washelesky, the prisoner at the bar, is guilty of murder in the first degree. That is the law of the land. You must uphold it." It does not appear, nor is it claimed, that the defendant or his counsel objected to the remarks when made or called the court's attention to them until after the verdict and judgment in the case had been rendered. Nor was the court below asked to grant a new trial because of these remarks of the state's attorney. While this court may in very flagrant cases of abuse of the state's attorney's privilege grant a new trial although the aggrieved party has failed to move for it in the court below, or to call that court's attention to the objectionable remarks, it is only in flagrant cases that it will do so. Ordinarily, unless such action has been taken in the trial court, such utterances afford no ground for an appeal or application to this court for a new trial. State v. Laudano, 74 Conn. 638, 645, 51 Atl. 860; Hennessy v. Metropolitan...